Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Saturday, June 16, 2018

Human Rights Driven Economic Regulation Through Supply Chains--Thoughts on the Civil Society Letter to the G20 Employment Working Group

As G20 employment and education ministers meet today in Geneva, OECD Watch and civil society organizations around the globe are calling on the G20 to implement key policy recommendations in relation to responsible business conduct in global supply chains.

In a letter to the G20 Employment Working Group, OECD Watch and allies lay out concrete policy recommendations for promoting and protecting human rights in global supply chains. The recommendations include actively promoting the OECD Guidelines and OECD due diligence guidance, strengthening and reforming the NCP system, and making human rights due diligence and supply chain disclosure mandatory.

The Letter drafted by this influential group of civil society organizations ought to be considered carefully. That consideration ought to be divided into three parts. The first is contextual. The second is normative. And the third is methodological. Each offers opportunities and challenges--both for the institutions to which the Recommendations in the Letter are addressed and to the civil society organizations that drafted them.

Context. The context is fear. Fear has many faces. Some of those were nicely unmasked in the G20 Labor and Employment Ministers (LEMM) 2017 Declaration; others were not. Yet, one gets the sense that the movement with respect to progress is as much one protective of a normative consensus whose time has come and gone (and must be recaptured) as it is about perfecting the project of rebuilding political, economic, social, religious, and ethical culture from out of the toolkit developed from the detritus of the Second World War. To that end, control of the factors of production becomes the key
driving element. That, indeed, was the great lesson of the OECD
projects--whoever controls the cultural levers of economic management,
whoever curates global productive forces are likely to control them.

And indeed, one sees in the Letter
the possibility of progress--from a model built principally on the
production of material wealth, to one that confronts the contradiction
of its distribution and the conditions under which it is produced. That
is the essence of the bold pronouncement: "Now more than ever, the
cracks in the current economic model are showing. Ensuring the respect
and protection of international human rights standards and
accountability within global supply chains is essential to achieve a
more inclusive global economy."

Yet, to read that quotation from the Letter
is also to transport oneself to the Great Hall of the People last
October 2017 for the reading of the 19th Chinese Communist Party Congress Report (see, also here and here) That Report also spoke to issues of cracks in the
current (Western dominated) economic model, and a quite different vision
for confronting the contradictions of the distribution of wealth and
the conditions under which it is produced. Indeed, just as the Western
project within which the Letter
is deeply embedded these alternative visions of norms and methods
appear to have gathered enough strength not just to weaken the old
order, to the leadership of which the Letter appeals, but to transform it.

What is at stake, of course, is the intellectual leadership (and its authority in its vanguard role) of that loose and dynamic coalition of persons and institutions, the
progeny of the post-War Europeanized elites, over their collective project of building a
global normative union, legalized around states committed to embedding
consensus based international standards uniformly within their domestic
legal orders. This was the model of dynamic and self-reflexive
transnational constitutionalism applied to the economic sector and
grounded in the primacy of "human rights" as the normative driver of
economic standards that is reflected, unconsciously, in the Letter.

The great project of transformation under the vanguard of Western elites and undertaken within its normative framework--from economic to normative progress guided by human rights principles--is itself now subject to to challenge from other vanguards. That vanguard is now challenged to preserve as well as advance their
normative and transformative vision. To that end, the question
becomes--will the progress of transformation stick well enough before it
is hijacked from within, or fractured from outside as competing visions
of transformation of global norms advance, and advance rapidly. That vanguard is now challenged to preserve as well as advance their normative and transformative vision. To that end, the question becomes--will the progress of transformation stick well enough before it is hijacked from within, or fractured from outside as competing visions of transformation of global norms advance, and advance rapidly.

But there is an internal challenge to the vision driving human rights driven transformation. That is the great challenge presented by the interiorization of the debates about human rights driven economic governance. The consequences curating the project of business and human rights (especially in the context of global production) suggests the organization and exhibition of things past, the organization of the past for the edification of the future. And therein lies the great danger of these exercises. To go on apparently oblivious to the challenges posed by challenges to the project of Post Second World War Settlement norms in the face of the normative challenges of China's "New Era" and the U.S.'s "America First" Initiatives, among others, may be regrettable to those committed to the worthy project to which the Letter contributes.

Norms. From this context, the worthy recommendations listed by civil society organizations in the Letter raises a few interesting issues that might also be worthy of consideration.

First, the connection between the three core normative elements underlying the specific recommendations may require some more thought with respect to their internal coherence. The normative foundations of the recommendations are based on (1) respect (2) protection, and (3) accountability. Clearly enough, these relate to principles embedded in the UNGP and the OECD's Guidelines for Multinational Enterprises (protect-respect-assess). Yet each of those terms remains mysterious (or in the language of lawyers and policymakers) underdeveloped other than as a set of useful if vague aspirational markers. Perhaps that is enough for now. But in a world in which such terms can be appropriated by any vanguard, it might be useful to move forward in a more decisive way the fleshing out of the understanding of these terms in the context of the business of human rights in economic matters. That avoids both the problem of curating these norms as well as creating a space where such progress can be made in light of changes in the context of global production.

Third, the so-called cracks in the economic model giving rise to the opportunity to develop the human rights driven model of economic globalization at the international level is anachronistic. Mr. Obama is not coming back; Ms. Merkel will soon join other historical markers of the golden age of the Post World War Settlement Era. And so on. The movement from a purely wealth-creating model of globalization (the middle phase of that era's development) to a human rights driven regulatory governance framework anchored by international (transnational in the private sector) norms was the natural next step in the current phase of that era (e.g., Theorizing Regulatory Governance Within Its Ecology). It has always been a mistake to look from an early 20th century European Marxist perspective at the evolution of the Post 1945 World order that was inherently driven by norms and internationalization, and by the core premises of human rights. That oppositional stance--again a carry over from the pre 1939 era, did more harm than good in the drive toward the system the full flowering of which is nicely evidenced in the language of the Letter.

It was indeed, only preservation of the integrity of the current model that provided the most sound basis for its natural evolution (given the origins of the system) into the human rights driven regulatory governance internationalism at the heart of the work of states, civil society, and. . . . yes. . . enterprises. Oppositionalism, then, was debilitating, even as it was good for the "business" for civil society. Its foundations were ultimately even more anachronistic than its current stance. None but political philosophers might find this of any interest, except for the consequence of a lack of both self reflection and reform to move with the times. That consequence is one that has opened the door for alternative vanguards, with alternative and potentially coherent visions, to replace the slow and in the long term successful march of the human rights driven economic internationalism envisioned in the Letter.

Fourth, a people-centered vision is a critical element of norm making. Yet the issue of the the principles through which people centering occurs remains difficult. I have suggested some of the difficulties in other work (e.g., Fractured Territories and Abstracted Terrains; ). For purposes of the communication to the G20, none of that mattered, perhaps. It would be enough to get even the vaguest nod in the appropriate direction. But still, any such nod would then put a responsibility of its advocates to have developed a normative framework that is both rule-of-law based and consistent with Western democratic principles (as badly implemented as they might be at the moment).

Fifth, international (public law) systems that recognize the power of transnational (private governance) systems must also recognize its consequence. There must be a strong governance role for enterprises (and civil society) within the transnational (private) spaces that global production has created. All of the clever drafting of states and regulations by a world full of well meaning people will not change the underlying realities of fractured and disjointed power among those who share responsibility for global production--and thus for care of the individuals affected. Likewise, to speak to human rights without referencing sustainability may weaken efforts as well. It s true that these letters must be simple and direct. They must necessarily divide the world into manageable categories. And they must tailor the "doable" in manageable chunks. That said, to speak to issues of disruptive technologies and supply chains without bringing sustainability issues closer to the center might in the long term reduce the effectiveness of a human rights driven agenda. Again this goes to the way that centering human rights legalities on capital driven production tends to harm the interests of labor as an autonomous element. The issue of human rights in production might well be recontextualized within the environmental and sustainability parameters within which it is possible to measure human rights (Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment).

Sixth, lastly and the most intriguing normative possibility in the Letter was the reference of the obligation of states (notably through the G20 ministers) to "consider issues related to the future of work." Yet that is hardly enough. The problem of labor remains untouched--even by these civil society actors. That problem--one never entirely surmounted by either Marx or Smith--was the initial premise of labor in capital (e.g., Labor and Democracy in the Shadow of Capital in Marxist and Free Market States; "The Problem of Labor and the Construction of Socialism in Cuba"). To the extent that a human rights driven system of internationalized regulatory governance does not confront the issue of the marginality of labor within its managerial constructions, the core issue of human rights--labor dignity--will not be confronted except at the periphery. This is not to suggest a radical rejection of capital. Quite the reverse; the power of capital is a core element of the deployment of productive forces for the benefit of societies and the individuals who toil within them. Rather it is instead a suggestion that the human rights elements of labor will become conceptually clearer and the analysis cleaner as conceptions of labor seek to place labor outside rather than within capital in the process of production. This is, of course, well beyond the powers of G20 ministers; but it is not beyond thew capacity of those entities that signed the letter. it

Methods. The methodology advanced in the letter follows from context and norms. There is little to add here. And,indeed, it is in this area that the Letter proves most valuable. Here is a roadmap that might wisely be used. It might be used not merely by the states to which these efforts are targeted, but also in the work of civil society and enterprises, who increasingly must shoulder the burdens of creating governance structures around the islands that are the domestic order as of states so delicately interlaced by principles of international law and norms.

The division of methodological approaches into the two baskets--supply chains and new-disruptive technologies made much sense. The first targets the modes of production that are key toward socialization of business practice within a broad area. The latter touches on the socialization of new enterprises otherwise free(er) to forge their own regulatory path. From my perspective, even serious debate on many of the recommendations raised would be a step in the right direction. I would,for example,welcome more serious engagement with National Action Plans,which I sense have a long way to go before they become useful (see,e.g., Moving Forward the UN Guiding Principles for Business and Human Rights). On the other hand, the issue of automation requires more than mere labor protectionism, especially if a goal is to enrich the working lives of persons. Here one sees the danger of curating rights in its methodological form: it is not clear that there is or ought to be a human right to preserving specific forms of production. But there ought to be a human rights driven focus on duties to ensure that individuals.

Lastly the issue of taxation ought not to be under estimated. From a certain perspective, taxation nicely encapsulates the problems of global production and the state-based distortions of the distributions of the wealth generated through global production. There is something anachronistic about dividing the value added of global production based on the location within states of the various components of its assemblage. If one can (and perhaps ought) to assume that global production leads to a singular end product, then it might seem more equitable to aggregate the accumulated value added from field-to-shop and distribute it equitably along the production chain, than continue with the current system that effectively penalizes those states in which the lowest value added portions of production are located. Here is precisely the area where states tend to get in the way of transnational production, and where state based solutions inhibit rather than promote a rights and equity based normative structure for economic activity. Yet these are precisely the problems that the G20 will be unlikely to solve--and a great place for civil society to act.

__________

Recommendations for G20 Employment Working Group from Global Civil Society

June 12, 2018

Dear Members of the Employment Working Group,

We, the undersigned civil society organizations, welcome the G20’s commitment to fairer
and more sustainable growth. Now more than ever, the cracks in the current economic
model are showing. Ensuring the respect and protection of international human rights
standards and accountability within global supply chains is essential to achieve a more
inclusive global economy. As progress remains urgently needed in this regard,
technological developments will bring additional and unprecedented challenges in
relation to jobs, workers, and wages.

The G20 Labor and Employment Ministers (LEMM) 2017 Declaration included a number

of important commitments in relation to the promotion of due diligence, transparency
and decent work in global supply chains; the eradication of modern slavery, forced labor,
and human trafficking; and guaranteeing social protections while shaping the future of work. We are encouraged by these commitments and press G20 members for full
implementation and public reporting on these efforts.

As you meet in Geneva for the joint session of the Employment and Education Working
Groups, we also urge you to follow the ‘people-centered vision’ set by the Argentine
Presidency while elaborating the 2018 G20 Labor and Employment Ministers Declaration.
Furthermore, it is important to build on past commitments and establish processes to track
and monitor progress against these pledges.

The Employment Working Group should enhance efforts to ensure respect for and protection
of social, environmental, labor, anti-corruption, and human rights standards and transparency
in supply chain management, promote decent work in global supply chains, and guarantee
access to justice including through effective grievance mechanisms. In addition, as the Employment Working Group considers issues related to the future of work, it should deliver
commitments to guarantee fundamental human rights in the context of new and disruptive
technologies.

As such, the undersigned organizations strongly recommend that the Employment Working
Group commit to the following actions in the 2018 LEMM Declaration:

Guarantee the promotion and protection of human rights including labor rights in global
supply chains

Commit to enacting legislation aimed at making human rights due diligence
mandatory;

Require companies to disclose information about their suppliers including the name
and location of production facilities;

Continue implementing the UN Guiding Principles on Business and Human Rights and
encouraging the development of substantive National Action Plans on business and
human rights;

Ensure all G20 States actively promote the OECD Guidelines for Multinational
Enterprises, including the OECD Due Diligence Guidance for Responsible Business
Conduct and other OECD sector specific guidance;

Ensure that OECD National Contact Points (NCPs) are sufficiently resourced, undergo
and implement the recommendations of peer reviews, strengthen the Procedural
Guidance that governs how NCPs handle complaints, and introduce material
consequences for companies that are found to be non-compliant with the OECD
Guidelines; and

Ensure a living wage in all G20 countries and regulate and incentivize companies to
ensure a living wage is paid throughout supply chains.

Ensure labor and social protections in the context of new and disruptive technologies

• Consult and give a voice to workers when considering regulatory and policy options to
respond to new technologies including automation, and strengthen worker
participation and social dialogue mechanisms;•Ensure access to social security schemes even in the event of unemployment, and
guarantee unemployment protections for all;

•Provide upskilling and retraining opportunities for displaced workers, and prepare all
workers for the transition to automation, including through science, technology,
engineering and math (STEM) education;•As more workers are pushed into the “gig” or “platform” economy, ensure strong
social benefits and labor protections, including freedom of association and collective
bargaining;

•Consider new taxation models as part of comprehensive strategies to address and
manage the social impacts of automation; and•Encourage companies to fully integrate the impacts of automation in their human
rights due diligence processes including by developing plans to ensure responsible and
inclusive automation.

In the context of an increasingly unfair and transforming global economy, guaranteeing
respect of fundamental human rights standards is essential to making globalization work for all. In 2018, the Employment Working Group is well positioned to make practical policy
commitments that will ensure that the benefits of economic growth and technological change
are shared more broadly.

The undersigned organizations stand ready to advise the Employment Working Group and
look forward to working together through the G20 and our respective governments to
promote and protect human rights within the global economy.

Subscribe To

ORCHID QR Code

ACI

A Top 100 Blog--Online Schools.org

Follow by Email

PRINTING INDIVIDUAL POSTS

Individual postings may now be more easily printed. To print, FIRST, click on the title of the essay you want to print, THEN scroll down to the "Labels" line near the end of the essay and CLICK on "print this article."

Cluster Maps

Wikio

Copyright; Citation and Attribution:

All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

BACKERINLAW--PERSONAL WEBSITE

Here you can find my published work, manuscripts, presentations, and more!

Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.